DDC16 v Minister for Immigration

[2017] FCCA 1267

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1267

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise Visa – there was no claim or circumstance identified that the Authority failed to take into account – Tribunal complied with its statutory obligations under Part 7AA – the adverse findings made by the Authority were open – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 476

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: DDC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2886 of 2016

Judgment of: Judge Street

Hearing date: 14 June 2017

Date of Last Submission: 14 June 2017

Delivered at: Sydney

Delivered on: 14 June 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr T Galvin
Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2886 of 2016

DDC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority” under Part 7AA of the Act made on 26 September 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant departed Sri Lanka illegally in September 2012 and arrived in Australia as an unauthorised maritime arrival on 26 September 2012. Prior to that time, the applicant travelled to India on two occasions between 2008 and 2010 and travelled to Singapore on approximately 12 occasions between 2007 and 2011. The applicant also travelled from Singapore to Malaysia approximately four times.

3. The applicant claimed to fear harm from the Karuna Group and claimed that he had been abducted and harmed by that group as a result of his work as a freelance photographer and that he had witnessed a murder and had lived in hiding and that he was a person of adverse interest on his departure. 

4. The applicant feared being abducted, detained, beaten, tortured and shot by the SLA and Karuna Group, or their Tamil Makkal Viduthalai Pulikal (TMVP) (political wing) for exposing their abuse and criminal activities. The applicant believed because of his links to the media, the authorities would perceive him as a threat. The applicant feared that the Sri Lankan authorities would arrest him for departing illegally and that because he is a Tamil from the East and will be suspected to have LTTE links. The applicant was found to be a Tamil Hindu, who originates from the Western province and after he married resided in the Eastern province.

5. The applicant applied for a Safe Haven Enterprise Visa on 11 January 2016 and on 22 July 2016, a delegate refused to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act. The applicant was identified as a non-excluded fast track applicant.

The Authority’s decision

1. On the 22 July 2016, the Authority wrote to the applicant identifying that the matter had been referred to it for review. The Authority identified that there are only limited circumstances in which it could receive new information. The Authority provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on submissions and provide any new information.

2. The Authority identified the applicant’s background and that the Authority had had regard to the material referred by the Secretary under s.473CB of the Act.

The applicant’s claims for protection

1. The Authority set out the applicant’s claims for protection and the applicant’s evidence. The Authority found that the last time the applicant was politically active was in the lead up to the 2010 Parliamentary Elections. The Authority was not satisfied the applicant did photography work or that he provided photos and information to any journalists or media outlets. The Authority was not satisfied that the applicant would be perceived as a photographer, human rights advocate for exposing injustice or for having links to the media. The Authority was not satisfied that the applicant published photographs that are being used in an ongoing murder case or that he witnessed a murder and was questioned by police.

2. The Authority identified significant discrepancies which were regarded as inconsistent in respect of the applicant’s claim concerning the Karuna Group, as well as inconsistencies in the measures that he allegedly took to avoid problems with the Karuna Group. The Authority accepted that the applicant had previously faced harassment including interrogations, threats and physical assault from the Karuna Group and SLA who were known to be aligned and conducted such activities in the Eastern Province at the time claimed. The Authority was not satisfied the applicant lived in hiding at any stage and was satisfied that at the time he departed Sri Lanka he was no longer of adverse interest to the Karuna Group or those SLA or police affiliated with them. The Authority did not accept that the applicant was of adverse interest to other authorities at any time.

3. The Authority was prepared to accept that the CID had visited the applicant’s home but did not accept that the CID had made frequent visits or that the reason for the relocation of the applicant’s wife and children was because of those CID visits.

Consideration of refugee convention criteria

1. Having correctly set out the relevant law, the Authority found it was not satisfied that the applicant would face a real chance of harm upon return in connection with his knowledge of the alleged crimes by the groups identified by the applicant.

2. The Authority was not satisfied the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the East. From the country information, the Authority found that the applicant would not face persecution in the reasonably foreseeable future on account of being a Tamil of male gender or that this would elevate his profile to be of adverse interest to the authorities. The Authority was not satisfied the applicant’s profile was such that the applicant would be at risk upon return of being detained under the operation of the PTA, or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links.

3. The Authority accepted that the applicant would be returning as a failed asylum seeker who departed Sri Lanka illegally. The Authority found that the applicant may be charged under the Immigration and Emigration Act 1988. The Authority found that while being questioned and processed at the airport, and even if held over the weekend while waiting to face a magistrate, the applicant will face a brief period of detention, but that the conditions will not be such as to rise to the level of a threat to his life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm to the applicant.

4. The Authority found that the applicant would be issued a fine and released or, if he pleads not guilty, he will be released on his own personal surety. The Authority found that the process leading to charge, conviction and punishment for breaching the relevant sections of the Immigration and Emigration Act 1988 would be the result of a law of general application applied to illegal departees and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Act.

5. Having considered the applicant’s claims to fear harm as a Tamil male from the Eastern Province, who was a TNA supporter living close to the Army and Karuna camps and was harassed by the Karuna Group and SLA members, but who has never been of interest to the authorities for suspected LTTE links, and taking into account that he departed Sri Lanka illegally and sought asylum in Australia, the Authority was not satisfied that the circumstances give rise to a well-founded fear of persecution.

6. The Authority found that the applicant did not meet the criteria under s.36(2)(a) of the Act and that the applicant was not a refugee as defined under s.5H(1) of the Act.

Consideration of complementary protection criteria

1. The Authority took into account the conditions to which the applicant may be exposed on return to Sri Lanka during a brief period of imprisonment for his illegal departure. The Authority was not satisfied the applicant would be subject to acts or omissions which would constitute significant harm as defined under s.36(2A) and s.5 of the Act during his time in detention or prison while awaiting the Magistrates Court hearing.

2. The Authority was not satisfied that the questioning and the imposition of such a fine would amount to pain and suffering, physical or mental, inflicted on the applicant or that it is intended to cause extreme humiliation such that it would amount to cruel or inhumane treatment or punishment, degrading treatment or punishment, or any other significant harm under the definition in s.36(2A) of the Act.

3. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 23 February 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.

Proposed grounds in the applicant’s submissions

1. On 2 June 2017, the applicant filed submissions,  the contents of which are as follows:-

   Ground 1

   The IAA failed to consider the real risk of significant harm the applicant may face due to his “proximity” to the Karuna bases and Army camp [CB 172,31].

   Particulars

   I. At [CB 172, 31] the IAA accepted that “the applicant has previously faced harassment including interrogations threats and physical assault from the Karuna group and SLA who were known to be aligned....robbed him and /tis wife and would sometimes use his motorbike."

   2. At [CB 172, 31] the IAA accepted “that this arose from his proximity to the Karuna bases and Army camp and his TNA involvement".

   3. At [CB 172, 32] the IAA further accepts that the CID “visited the applicant's home after his arrival in Australia to enquire about his illegal departure".

   4. At [CB 178. 63], the IAA made findings “that the applicant was not of interest to the Karuna group, the TMVP or their affiliates in the authorities when he departed Sri Lanka".

   5. It is submitted that the IAA failed to consider if the applicant faces a real risk of significant harm (i.e. of harassment including interrogations threats and physical assault on the Karuna group and SLA) due to his proximity [CB 168, 5].

   Ground 2

   The IAA's reasoning at [CB 173, 36] was inconsistent and illogical with its own findings at [CB 172,31].

   Particulars

   I. At [CB 172, 36] the IAA accepted that the applicant “did not engage in political activities with the TNA in 2010 and that he was not of adverse interest to them, nor the SLA or police affiliates or anyone at the time he departed.

   2. At [CB 172, 36] the IAA accepted that previously the applicant was interrogated,  threatened, physically assaulted by the Karuna group and the SLA and that he and his wife were robbed and had to allow the perpetrators to use his motorbike. The reason that the applicant suffered serious and or significant harm according to the IAA on the basis of paragraph 36 of the decision is

   a. The applicant's proximity to the Karuna bases and Army camp and

   b. “his TNA involvement"

   3. The IAA states at [CB 172, 36] that it had turned its mind to “the possibility that the applicant may participate in promotion or other political activities supporting the TNA upon return"

   4. Though the IAA may have had regard to “changed country situation"  [CB 174. 41]  and was not satisfied that the applicant would not face a real chance of harm from the Karuna Group, the TMVP, authorities (even if the applicant “were to publicly support and promote the TNA upon return), the IAA failed to consider that it was not only the Kamna Group that had caused harm to the applicant in the past on account of his “TNA involvement".

   5. While it may be so that the “Karuna group's and TMVP's influence has “significantly faded” [CB 173, 37], the perpetrators who caused harm to the applicant in the past included the “SLA".  The IAA does not refer to country information that seems to suggest that the “SLA's"   influence has “Significantly faded".

   6. Therefore should the applicant return and engage in politics (i.e. support and promote the TNA) despite the Karuna group's and the TMVP's influence having “significantly faded", the risk of being harmed by the SLA or police affiliates remain remains.

   7. The IAA not only failed to consider an essential integer of the applicant's claims as particularised above, it also made a finding that appears to be inconsistent, illogical and unreasonable that no reasonable decision maker would make.

   Ground 3

   The IAA's reasoning at [CB 174, 41] was inconsistent and illogical with its own findings at [CB 172, 21].

   Particulars

   I. At [CB 172, 21] the IAA was not satisfied that the applicant “took the claimed published photographs that are being used in an ongoing murder case or that he witnessed this claimed murder and was questioned by police".

   2. At [CB 174, 41] the IAA raised concerns that the applicant “has not indicated that he intends to return and lodge any complaints or provided credible examples of cases under investigation under which he could be called a witness .... I am not satisfied that the applicant would not face a real chance of harm upon return in connection to his knowledge of their crimes”.

   3. The IAA erred in its reasoning at [CB 172, 21 ], namely that on the one hand the IAA clearly states that it did not accept the claim that the applicant witnessed a murder and on the other hand the IAA explicitly and impliedly accepts that the applicant had knowledge of “their crimes"  and was a witness.

   4. The IAA's reasoning therefore is inconsistent, illogical and unreasonable that no reasonable decision maker would make.

   Ground 4

   The IAA' s reasoning at [CB 179, 69] is infected with legal error, the kind of error described in SZTAL by the applicants in that matter, as this matter is yet to be brought to finality, the applicant's matter must be adjourned until a decision is made by the High Court of Australia.

2. Notwithstanding the opposition of the first respondent, the Court granted leave to the applicant to rely upon the grounds identified in the submission as grounds of alleged jurisdictional error. 

Grounds in the originating application

1. The grounds in the originating application are as follows:-

   1. The IAA's decision is tainted with jurisdictional error.

   2. The IAA failed to consider all of my claims and circumstances and not to so was procedurally unfair.

   3. The IAA failed to consider my claims cumulatively.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Authority’s decision was unlawful or whether the Authority’s decision was unfair. The Court explained that if satisfied the Authority’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair, the applicant’s application would be dismissed.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant asserted that the Authority had not properly and completely considered his claims. On the face of the Authority’s reasons, the Authority correctly identified the applicant’s claims and evidence and made findings that were open on the material before the Authority. On the face of the material before the Authority, the Authority complied with its statutory obligations in the conduct of the review under Part 7AA. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review under Part 7AA by giving the applicant an opportunity to put on submissions and provide new information.

2. The applicant also submitted that at the initial protection interview he was not permitted to provide all the information he desired. That assertion is not consistent with the summary of the claims identified in the delegate’s decision at page 120 of the Court Book.  On the face of the material before the Court, the applicant had a real and meaningful interview before the Department.

3. The applicant otherwise relied upon his written submissions, identifying the grounds referred to above. In reply to the solicitor for the first respondent, the applicant maintained that he will still face fear and a risk to his life if returned to Sri Lanka. Nothing said by the applicant from the bar table makes out any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1 in the originating application, the generalised assertion of jurisdictional error unparticularised, does not make out any jurisdictional error.  No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, there was no claim or circumstance identified that the Authority failed to take into account on the face of the material before the Court. Accordingly, no jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Authority expressly referred to taking into account the applicant’s claims cumulatively in holding that it was not satisfied that the applicant’s circumstances cumulatively give rise to a well-founded fear of persecution. The Authority also referred to the applicant’s circumstances in their totality in considering complementary protection. No jurisdictional error is made out by ground 3. 

Proposed ground 1

1. In relation to proposed ground 1, it is apparent from the Authority’s reasons and in particular at paragraph 70, that the Authority was aware of the proximity of the Karuna bases and army camp in its review of the applicant’s application for a visa. The Authority expressly addressed the applicant’s claim to fear harm from the Karuna group and was aware of the applicant’s concern because of the proximity of the Karuna base and army camp. There was no failure by the Authority to properly address the applicant’s claims to fear harm from the Karuna group or the army or the SLA.

2. The applicant’s claims were dealt with dispositively and in substance, proposed ground 1 reflects the applicant’s disagreement with the adverse findings by the Authority. Those adverse findings were open and cannot be said to lack an evident and intelligible justification. Proposed ground 1 fails to make out any jurisdictional error. 

Proposed ground 2

1. In relation to proposed ground 2, the Authority correctly identified past harm in its findings and then turned to the issue of assessing the risk of future harm. There was no illogicality or inconsistency in the Authority’s approach in doing so. Further, the Authority took into account the applicant’s fears of harm from the Karuna Group, the SLA or police affiliates. There was no failure by the Authority to address the applicant’s claims and those adverse findings were open and cannot be said to lack an evident and intelligible justification.

2. The particulars to proposed ground 2 are in substance a disagreement with the adverse findings by the Authority and do not identify any jurisdictional error. Further, the reasoning of the Authority was not inconsistent or illogical and as indicated, the findings were reasonably open. No jurisdictional error is made out by proposed ground 2. 

Proposed ground 3

1. In relation to proposed ground 3, it was open to the Authority and proper for it to address past matters of abduction and the further claim in relation to having witnessed a murder as a factually distinct claim.  There was no illogicality or inconsistency identified by proposed ground 3 in the findings made by the Authority. The findings of the Authority identified by proposed ground 3 were open and cannot be said to be inconsistent, illogical or unreasonable. No jurisdictional error is made out by proposed ground 3. 

Proposed ground 4

1. In relation to proposed ground 4, this Court is bound by the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. On the face of the material before the Court, the Authority made findings that were open to it which are not the subject of any jurisdictional error, as alleged in proposed ground 4.

2. Further, proposed ground 4 is not a proper basis upon which this Court should adjourn the proceedings. This matter had been fixed for hearing by an order of the Court made on 23 February 2017. The existence of proceedings in the High Court of Australia in relation to SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 does not of itself give rise to circumstances in the present case that warrant an adjournment of the proceedings in the interests of the administration of justice. I am not satisfied that an adjournment is warranted in the interest of the administration of justice. No jurisdictional error is made out by proposed ground 4.

Conclusion

1. Accordingly, the application is dismissed. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 July 2017